*1 (No. 87245.
THE OF ILLINOIS, PEOPLE THE OF STATE Appel-
lee, v. MURRAY BLUE, Appellant.
Opinion September 2001. filed *2 C.J., HARRISON, KILBRIDE, J., specially concurring. THOMAS, J., joined by GARMAN, J., dissenting. Schiedel,
Charles Deputy Defender, of Springfield, Clark, and Steven Defender, Assistant of Chicago, both of the Office of the State Appellate Defender, appellant. Ryan,
James E. Attorney General, of Springfield, and Devine, (William Richard A. Attorney, of Chicago Browers, L. Assistant Attorney General, of Chicago, and Goldfarb, Renee Judy L. DeAngelis and James E. Fitzger- ald, Assistant State’s Attorneys, counsel), for the People.
JUSTICE FITZGERALD delivered the opinion of the court:
Following a jury trial in the Cook County circuit *3 court, Blue, Murray was convicted of first degree murder killing Louis Moret. The jury found the defendant eligible for the death penalty. See 720 ILCS 1(b)(3) (West 1998). The jury then found no mitigat 5/9 — ing circumstances sufficient preclude the death penalty, and the trial court sentenced the defendant death. That sentence has been stayed pending direct by review this court. 1970, Ill. Const. VI, 4(b); § art. 609(a). 603, 2d Rs.
We reverse the defendant’s conviction and remand for a new trial.
BACKGROUND Around 10 a.m. on February 1995, a Chicago police officer patrolling a neighborhood west side passed an Amoco gas station where a group of had people park- into the station’s pulled the officer
gathered. When a on his lot, lying Moret dead back ing she saw Louis An the cashier’s booth. near the rear of pool of blood had shot times. revealed that Moret been autopsy heart, liver, spleen, kidneys, lungs, Injuries 8, 1995, the death. On March caused his intestines charge.1 He was on an unrelated defendant was arrested Moret. degree murder of indicted for the first later Amoco Hall, attendant at the trial, Terrance an At up to gray pulled van station, that a two-tone testified day on the around 10 a.m. pumps the full-service gas, green a car filled the van with shooting. Hall While Moret, A pumps. passenger, up to the self-service pulled van, and to the van’s car, spoke approached exited the According not hear this conversation. driver. Hall could the van and stood Hall, away walked from Moret then from persons with two fine at the cashier’s booth van, toward walked defendant then exited car. The Hall Moret. booth, began arguing with the cashier’s to the and returned for the van pumping gas finished booth, the defendant become Hall saw Inside booth. continued; nothing. did Moret argument angrier as inside from argument the entire quite not hear Hall could drugs mention of any not hear He did booth. “f— this bitch.” say defendant he did hear the gangs, but anything not Hall did see argument, During jacket Moret reach into his did he see hands nor Moret’s Hall his hands. unusual movements any or make Moret once. shoot that he saw testified run, pursued defendant but the then turned to Moret ground, fell to the again. him Moret and shot him 911, the called As Hall shooting. kept defendant away van, sped then which returned gas from the station. across the street station Pane, gas cashier at
Irma *4 (2000). 189 Ill. 2d Blue, 1 See People v. pull that a car shooting, green testified she saw
from around 10 a.m. Moret exited into the Amoco station and stood in car, money, for a moment to count stopped into gray pulled line at the A van then cashier’s booth. station, speak and the defendant exited the van to Moret. Pane could hear this conversation because with on. Pane heard the loudspeaker the station’s was Moret a “motherf —.” The defendant then defendant call pulled gun spun a from his side and shot Moret. Moret escape, toward the car to and Pane turned to call the station, police. When she looked back at the Amoco Moret lying ground. was facedown on the The defendant then kicked Moret and returned to the van. The van drove away from the any weapons station. Pane never saw Moret’s hands and never saw him reach for a weapon.
Tyrus Taylor, one of Moret’s friends and the driver of car, green testified that pulled he into the Amoco sta- tion around 9:45 a.m. on the day Moret, Myrick, D’Shon and Gabriel Blakemore. The four men all exited the car. Taylor prepaid gas at the car; Moret, cashier’s booth and returned to the Myrick, and Blakemore continued to stand in line. The defen- gray dant’s van already at the station. Tall Ralph Mein, and Chow two of the friends, were standing also in line buy at the cashier’s booth to cigars and soft drinks. The defendant exited the van and ap- proached According Taylor, Moret. he heard Moret and the defendant arguing about a recent confrontation high James,” between two school students: “Little friend of Moret Taylor, Tutu, had slapped a female friend of the Taylor say, defendant. heard the defendant nigger.” He respond, “[F]— heard Moret “[F]— that bitch and f— you, pulled too.” The defendant then gun and shot began run, Moret. Moret but him pursued Taylor and continued to shoot. dropped ground, taking cover behind his car. When *5 shooting stopped, he saw the defendant get into
van, sped away. Taylor which and stood walked around Moret, the car to see but he did him. Money not touch from flying Taylor Moret’s hand was around the station. Blakemore, then gave keys his car to so Blakemore could family leave the station to tell Moret’s the shoot- about ing. Taylor gun day, had not seen Moret with a and he did not see Moret reach for anything inside his coat Taylor gas while at the station. conceded that pump him and Moret during argument, was between but pump he insisted that did not obstruct his view the shooting. Myrick Taylor
D’Shon testified that into an pulled Amoco station around 10 a.m. on the of the day shooting. Blakemore, and all Taylor, Myrick, Moret exited the car Myrick gray and booth. noticed a walked cashier’s at the Blake- already parked pumps. van was full-service gas, Taylor began pumping. more and At the paid booth, and one of cashier’s the defendant his friends and Moret. The defendant told Myrick stood front of out of line to with buy cigars got speak his friends Moret the defendant According Myrick, Moret. asked being something regarding he why phony was about Myrick Tutu. could see the reflection of Moret and the him in the arguing behind window gun the defendant wave his Myrick cashier’s booth. saw ran begin shooting away in the air and Moret. Moret followed and from the but the cashier’s Myrick continued to shoot. eased behind shooting more shots. Once the safety booth for heard did the defendant or the van. He stopped, Myrick not see wounds; ground gunshot Moret on the lying saw Myrick that before money lying around Moret. said started, counting money Moret was hands, in Moret’s weapon did not see a Myrick hands. jacket into his before and he did not see Moret reach shooting. Myrick flagged police car and ran from down a family shooting. tell Moret’s about the the station to Myrick Henry friend and related encountered his Erwin him. the events to Henry gunshots he heard
Erwin testified that down Myrick crying the street from the Amocostation. He saw hysterically According running down the street. Henry, Myrick “Murray Murray just said, Louis, shot Henry Myrick killed Louis.” drove home. Taylor pulled up Blakemore testified that
Gabriel pumps day self-service the Amocostation on the shooting. gray belonged Blakemore saw van which pull up pumps. to the defendant to the full-service Blake- *6 Taylor, Myrick more, and exited car and went to the briefly booth; cashier’s Moret to the van and came went back to the booth. The defendant van, exited the walked to the cashier’s booth of where two his friends from the waiting, buy cigars van were and instructed them to and began soft drinks. The defendant then faced Moret and arguing about Little Tutu; James and the defendant upset. any weapons looked Blakemore did not see they Moret’s hands while booth, stood the cashier’s jacket. and he did not see Moret reach into his Moret had money During argument, in his hands.
pulled gun shooting a and started Moret. and Blakemore Moret ran car, toward their but defendant shot Moret legs. Taylor, in the Blakemore hid behind the car with shooting stopped, lying and when he saw Moret on ground. Taylor Neither Blakemore nor touched body. gone, Moret’s The defendant and the van were and Taylor’s keys Blakemore took car and drove the car to Moret’s house.
Chicago Sergeant Police Michael Gerhardstein testi- shooting fied that he arrived at the scene of the around lying 10:25 a.m. and saw Moret on the raised sidewalk police on the side of the cashier’s booth. Two other offic- ers were Ronald of present, including Sergeant Holiday Maywood police department. Holiday had collected cash, a casings, piece jewelry. some shell and of $600 Sergeant spoke Gerhardstein with several witnesses He gray regis- about van. learned that the van was tered to the and an obtained arrest warrant Sergeant for the defendant. also spoke Gerhardstein shooting. Blakemore after Blakemore said that he tried to move Myrick body. Sergeant Moret’s Ger- that Blake- investigatory *7 gang. street joined Moret then his
The defendant testified that in line at the cashier’s Myrick friends and Blakemore talking began booth. The defendant assumed Moret drug-selling territory with Tall shooting of his about and and Mein. The defendant exited the van Ralph Chow you friends, right? up? “Is it all What’s Is asked his two Blakemore, defendant, referring to the okay?” Moret and right motherf— there.” The said, go p— “There responded by pulling gun insisting and out his shooting drug- he not involved in the of Moret’s was selling territory. Ralph The defendant told Tall and Chow According Mein to return to the van. again referring
Moret, defendant, said, ain’t to “He going nothing, you guy, you to do know. We will do this saying, you know I am if to.” what want us Moret motioned left with his hand Blakemore should move way right “actually out of the hand he with his reaching pocket going going his like he toward his [jacket] pocket.” The defendant stated that he saw right-hand go jacket Moret’s into his and that he believed reaching gun. began Moret was for a The defendant then pursued fire, and Moret ran. The defendant Moret thinking fire, continued to that he had missed Moret. “just fired, After all the shots were kind of girlfriend’s shuffled back the van” and drove to his house Bellwood. cross-examination,
On the defendant stated that he did not return to his own house after the police he because knew the him would look for there. posed The defendant conceded that Moret no threat to away though him after he van, walked from the question defendant considered Moret’s an be insult. thought posed defendant, however, Moret a threat to Ralph talking Tall Mein Chow because Moret was Ralph them. When the defendant asked if Tall and Chow gun fine, Mein were Moret did not have a in his hand. gun purportedly The defendant did not see a when Moret jacket. acknowledged reached into his The defendant gun. that he never saw Moret with a The defendant testi- fied that feared he for his life for at least the first five dissipated shots”he fired at Moret. The defendant’s fear lying ground. once Moret was on the The defendant Hall Hall recalled as witness. testi- approached body fied that Moret’s friends and turned *8 if Moret had fallen to the him over to see he was dead. side; ground pushed and rested on his Moret’s friends not remove a anyone him onto his back. Hall did see body. weapon from Moret’s Sergeant Holiday testified as a defense witness. On daughter off his day shooting, dropping he was He gas at where Pane worked. for work station Holiday a commotion the Amoco station. noticed facedown, lying Moret arms crossed the street and saw out, coming pocket. hands and from his money money and the began up casings shell Holiday picking around the “touching everything” were people because not reach toward Holiday anyone crime scene. did see body anything. to remove guilty degree of first jury The found penalty. for the death After eligible murder found no hearing, jury aggravation/mitigation penalty, the death mitigating preclude factor sufficient ap- to death. This and the court sentenced the defendant peal followed.
ANALYSIS appeal. numerous issues this The defendant raises the trial court focus on his third issue: whether We defense counsel’s cross- unconstitutionally restricted for the key examination of witnesses State. filed a motion in limine to bar trial,
Before the State The motion as- gang reference to affiliation. any to show that this shoot- serted that “there is no evidence any gang gang membership type related to ing was mo- support evidence to activity” and “there is no State, the defendant had alterna- According tive.” to the testimony of discrediting prosecu- tive methods tion witnesses. motion, the State reiter- hearing
At the on the State’s ir- evidence was gang-affiliation ated its contention that The confusing jury. potentially relevant responded defense drug that Moret and his friends rival were and rival dealers members defendant. argued gang, defense that members Moret’s Dog subsidiary gang, had Pound of the Vice Lords street *9 days at the in the shot defendant’s friends house shooting before the here. Defense counsel concluded: that, Honor, your “Because I think here the issue is apprehension what was Mr. Blue’s reasonable at the time? people The fact that these group were members of a who him, home, had fired at at his at his friends on several oc- past certainly casions in the is relevant to what he think- is ing at the time of this occurrence.” provisionally granted The trial court the State’s mo- something tion there “unless is that comes forth to show legitimate that there is some reason to let in the evidence gang gangs gang activity.” or stated, The court “I any do not see that this has relevance based on what has put any specificity forth been here without as to who may shooting giving have been at Mr. Blue or him a person.” reason to want to shoot and kill other this jury selection, At the close of the defense asked the ruling court to reconsider its on the State’s motion in limine. The defense asserted that its case would show dispute involved a between rival drug territory, argument members over not over an high acquaintances. Gang-affiliation between school again argued, relevant, evidence was the defense to show by that the defendant felt threatened Moret. Defense goes testify. “[I]t continued, counsel also to the motive to person [the defendant] This is a rival of theirs. Because way they he is out of the stand to make an awful lot of money, judge.” disagreed: The State “The fact that maybe groups differing opinions these two had or did differently justify taking business does not of a life. trying [defense dirty up is] All counsel to do is the wit- ness with no relevance to it. That not what the Court should allow.” impeach
The court observed that the defense could their credibility drug of the State’s witnesses with then According to the the court convictions. original ruling, allowing its purportedly reversed during evidence present gang-affiliation defense to alleging “You’re self-defense. testimony: the defendant. testimony through Then I allow the will brought I rule it can be forth and properly Based on that Immediately he his defense.” before present is allowed trial, to reconsider its new rul- the State asked court did not alter ruling The court clarified that the new ing. not to allow the original ruling: “[M]y intent was as to gang of the State’s witnesses cross-examination If membership. Mr. Blue wanted activity that, That’s another testify to that’s another situation. I indicated I would allow that.” story as “In all criminal amendment provides: sixth *** to enjoy right be prosecutions, accused shall him ***.” U.S. against confronted with witnesses *10 (“In 1970, I, § art. 8 Const., VI; accord Ill. Const. amend. right the the accused shall have prosecutions, criminal *** him or against the to be confronted with witnesses her”). the witnesses prosecution’s Confrontation forces v. (California Green, 399 to cross-examination to submit 1930, 489, 497, Ct. 1935 149, 158, 26 L. Ed. 2d 90 S. U.S. legal engine the (1970)), “beyond any greatest doubt (5 Wigmore, truth” J. discovery for the of ever invented 1974)). (Chadbourn Ac 1367, rev. ed. § at 32 Evidence right to defendant’s constitutional a criminal cordingly, Doug right to cross-examine. confrontation includes Alabama, 934, 937, las v. 415, 418, L. Ed. 2d 13 380 U.S. (1965). 1074, 1076 85 Ct. S. by principal means which is the
“Cross-examination testimony are truth of his believability of and the a witness of a trial discretion Subject always to the broad tested. harassing inter- unduly repetitive and judge preclude to to delve only permitted is not rogation, the cross-examiner
13 story perceptions into the witness’ to test witness’ memory, traditionally but cross-examiner has been al- i.e., discredit, impeach, way lowed to One of witness. discrediting prior to introduce witness is evidence *** particular criminal conviction of that A more witness. by credibility attack on the witness’ is means of effected revealing possible cross-examination directed toward biases, prejudices, or ulterior motives of the witness as they may directly personalities relate issues or partiality subject case at hand. The of a is witness trial, exploration ‘always discrediting and is as relevant weight and affecting testimony.’ witness of his Alaska, 316, 308, [Citation.]” Davis v. 415 U.S. 39 L. Ed. (1974). 353-54, 347, 1105, 2d 94 S. 1110 Ct. of a scope cross-examination is subject
limited to the “[a]ny direct examination and permissible matter which affects the witness’s cred ibility.” Kliner, v. People 81, (1998); 185 Ill. 2d 1 130 see (5th § J. Strong, 22, McCormick on Evidence at 97 ed. 1999). We have noted that repeatedly enjoys the court discretion impose reasonable such limits on cross- to assuage examination concerns harassment, about prejudice, jury confusion, safety, repetitive witness (see, and irrelevant v. questioning e.g., People Frieberg, 326, 147 Ill. 2d (1992)), 357 discretionary but this author ity only arises after permitted the court has sufficient cross-examination satisfy confrontation clause (1999)). Averhart, (People v. 311 492, Ill. 3d App. 497 Ac cord Rufus, 104 App. 467, (1982), 473 cit (5th ing United Vasilios, States v. 387, F2d Cir. (8th 1979); States, 829, see Heard v. United 255 F. 1919) (“It Cir. only right after full [of cross- has been substantially fairly examination] exercised the allowance of cross-examination discre becomes tionary”); also States, see v. United 282 U.S. Alford *11 694, (1931) (“The 624, 75 L. 629, 218, Ed. 51 Ct. S. 220 extent of respect cross-examination appropri to an ate subject inquiry of is within the sound discretion of
14
may
judgment
trial
It
a reasonable
the
court.
exercise
exhausted”).
is,
the
is
That
determining
subject
when
court
afford a
the widest
the
should
defendant
latitude
People
to establish the witness’ bias or hostile motivation.
Kitchen,
1,
Barr,
Ill.
(1994); People
Ill. 2d
37
v.
51
v.
159
(1972).
a
50,
2d
52
A defendant
states
confrontation
prohibited
he was
from
“by showing
clause violation
that
engaging in
cross-examination
appropriate
otherwise
of
designed
part
a
form bias on
prototypical
show
Arsdall,
673,
Delaware v. Van
475 U.S.
of
witness.”
(1986).
684,
1431,
680,
674,
L.
Ct.
1436
89
Ed. 2d
106 S.
of
of
cross-
Although
right
a denial
effective
of
labeled a “constitutional
error
examination has been
(Brookhart
1, 3,
Janis,
the first
v.
384 U.S.
magnitude”
(1966)),
316-17,
1245,
314,
L. Ed.
S. Ct.
1246
16
2d
86
has instructed:
Supreme
Court
whether, assuming
damag-
inquiry
“The
that the
correct
realized, a
ing
fully
were
potential of the cross-examination
say that
error was
reviewing
might nonetheless
court
an
Whether such
er-
beyond
harmless
reasonable doubt.
particular
depends upon
a host of
ror is harmless
case
factors,
reviewing
These
readily
courts.
all
accessible
testimony in
importance of the
factors include the
witness’
case,
cumula-
testimony
prosecution’s
whether
tive,
corroborating or
or absence of evidence
presence
material
contradicting
testimony
of the witness on
permit-
otherwise
points,
extent of cross-examination
and,
ted,
course,
strength
prosecution’s
the overall
686-87,
684,
Arsdall,
89 L.
2d at
Van
475 U.S. at
Ed.
case.”
Accord v. (1989); v. 1, 43-44 see also Ill. 2d Young, 128 (confrontation (1981) clause Wilkerson, Ill. 2d measuring harm approaches three enumerating case error). less trial erred court contends Blake- Myrick, Taylor,
barring cross-examination cross- such affiliation because more on their
15 would revealed these examination have witnesses’ biases against witnesses, argues the defendant. These the sought to ensure his conviction in order to gang eliminate a rival and avenge Moret’s death. See (1985) 2d People Triplett, 463, (impeach v. 108 Ill. 475-76 ment to bias create the show must an inference that wit ness something gain testimony). has from the that, recognized particularly metropolitan
We have areas, jurors may negative feelings have street about gangs; gang but “evidence of affiliation not need be excluded if it is otherwise relevant and admissible.” (1990). Smith, People 40, v. 141 Ill. 2d 58 In some circumstances, gang evidence of affiliation sufficiently is probative bias of its warrant admission on cross- Abel, See 45, 52, examination. United States v. 469 U.S. (“A (1984) 450, 465, 83 L. 457, Ed. 2d 105 S. Ct. 469 wit party’s ness’ and a membership organiza common in an *** tion certainly bias”); probative Roman, People v. (1993) (“A 248 Ill. 3d App. 1086 clear motive to lie could be shown when considering that two of the identify ing witnesses were of a part gang”). rival Gonzalez,
In (1984), 104 Ill. 332 the defendant charged degree was with first murder. The cross-examination State made motion in limine to bar of one of its two occurrence subject witnesses on the gang affiliation. The defendant argued that such evidence necessary was to his defense. The defendant theorized that the key witness testimony fabricated his in order to against retaliate recently defendant for quitting prosecutorial or to witness, shift attention from the scene, who was murder present to the defendant. granted trial motion, barring court all gang-affiliation evidence.
We held that the trial improperly court limited the cross-examination as to witness’ bias or testify Gonzalez, motive to falsely. Ill. 2d at 337. We rejected gang-affiliation the State’s contention of the shooter identity evidence was collateral being that he framed because asserted Gonzalez, 2d at by the State’s witness. 338. We rul also the State’s contention that the court’s rejected ability ing did not limit the defendant’s to cross-examine witness about his motive testify: “Gang activity affiliation and concerted family threatening harassing formed however, theory, very and neither basis of defense argument suggest oral State in their briefs nor at did the *13 questions just how counsel could have framed defense necessary refer- designed to elicit the information without gang membership ence to and activities.
Questions regarding
gang
[the witness’]
activities and
against
clearly
the
threats
the defendant were
relevant
reliability
testimony,
[the witness’]
and should have been
Gonzalez, 104
at 338.
allowed.”
Ill. 2d
the
error
not
concluded that
trial court’s
was
We
Gonzalez,
beyond a
doubt.
harmless
reasonable
have
may
at 338. The error
contributed
conviction;
the
not
State’s other evidence did
conviction;
gang-
and the
overwhelmingly
support
the
duplicative
was
affiliation evidence
not cumulative
Gonzalez,
evidence.
gang
the court barred all
because
The Seventh Circuit
(7th
O’Leary,
in Clark
The Seventh Circuit acknowledged the confron- tation clause allows on if restrictions cross-examination questions Clark, are irrelevant or collateral. F.2d noted, however, at 1004. The court that under Davis permitted present “defense counsel must be its bias theory. [Cita- evidence within context of the defense theory alibi, tion.] Because defense on based potential motive of the State’s witnesses fabricate their alleged observation of [the defendant] at the scene of the crime any had to be examined. The relevance of affili- ation of identification witnesses would apparent, be for any allegiance members, besides to other potential of physical threat reprisals testifying otherwise certainly could have motivated these witnesses to concoct ‘get’ story to rival gang [the members defendant] and his Yet no questions co-defendants. such regarding threats permitted. were
The trial court here wrested role of fact finder from jury by preliminarily screening credibility witnesses, ‘Well, stating gang membership, though even it probably felony, should be a isn’t. And so—and it is noth ing that —that affects credibility.’ [Citation.] one’s This as *14 sertion of error, the court was a constitutional permitting present the State to its case having only without its Clark, observation properly witnesses confronted.” F. 2dat 1006.
The court then turned to the harmless-error
factors
by
identified
Supreme
Clark,
the
Court
Van Arsdall.
Like the and witnesses provided proving and crucial links Myrick, Blakemore case, and their affiliation was relevant State’s The trial court’s in limine credibility. ruling, to their gang rivalry, which cut off all cross-examination on these unreasonably exploring limited the defense from beyond This error was not harmless witnesses’ biases. reasonable doubt. three of the
Taylor, Myrick, and Blakemore were witnesses, their testimony occurrence and State’s five cumulative testimony of from the other was not witnesses, shooting Hall and Pane. occurrence When booth, and began, standing Hall was inside the cashier’s street, Myrick, working Taylor, Pane was across the but shooting standing and Blakemore outside when were from argument began. saw the Taylor car, shoot- Myrick argument behind his saw of ing only the window the cashier’s as reflection only with a clear view booth. Blakemore was witness testimony, their Additionally, and the defendant. Moret points, Pane on by corroborated Hall and some though the defendant’s was contradicted on others —whether car already Taylor’s when parked van the station was arrived, in his hands before money whether Moret had Taylor, and Blake- shooting, Myrick, and whether body shooting. more touched Moret’s after trial, allowed to cross- although At the defense was convictions, which on their prior examine these witnesses direct, remaining cross- on the State discussed was unable to examination routine. Defense counsel witnesses jury. These impression leave an bias with Moret, only were but they testified that friends
19 gang rivalry evidence came from the defendant. Finally, supporting degree evidence State’s first strong, overwhelming. murder but not was gang-affiliation The State contends that evidence was Lynch, People inadmissible under v. 104 Ill. 2d 200 (1984), theory in which we held that “when the of self- aggressive raised, defense is victim’s and violent aggressor.” character is relevant to show who was the Lynch, inapposite. however, concedes, The State agree, generally we that the defendant’s evidence showed rivalry Dog between the Pound and the defendant’s gang. sought expose The defense to use this evidence to potential against witnesses’ bias not to show Moret’s character.
The State also contends that we must balance the probative gang-affiliation against value of evidence its prejudice. upon People In its motion, the State relied v. (1994). App. Harris, 262 Ill. In Harris, 35 charged attempted defendant was murder. On cross- examination, defense counsel asked the victim if he was gang objected, contending a street member. The State gang-affiliation that irrelevant evidence would confuse jury. responded The defense that affiliation protect relevant because the victim wanted to cousin, allegedly shotgun fellow member, who had a on night shooting. In the absence evidencelink ing gang activity, the court sustained the objection. appeal, acknowledged “gang
On the court activ ity may against be relevant to show bias partiality always because the of a witness is relevant.” App. Harris, 262 Ill. 3d at held, however, 47. The court properly that the trial court excluded such evidence after weighing marginal shooting against its relevance to the potential prejudice its the State and confuse the is sues, “where defendant had other he alternatives which Harris, testimony.” [the witness’]
used to discredit Rodriguez, Ill. Accord App. 3d at 47. *16 (1997) 55, the trial court’s restric (upholding 65 App. relationship the of because tion cross-examination the incident was membership gang between best”). “speculative at Harris, in here
Unlike the Additionally, to show witness bias. had few alternatives gang- of the accuracy concern with the the State’s of- in was addressed the affiliation evidence of trial, the defense made an offer proof. During of fers a Taylor have testified he is member proof that would Henry street and that Traveling gang Vice Lords the a was also member of would have testified Moret made offer of The defense later an Traveling Vice Lords. of Blakemore. the cross-examination proof regarding Blake- have asked stated that he would Defense counsel about more Hustlers, membership specifically in the Four Corner
“his subsidiary Four Dog of the membership Pound Hustlers, Louis Moret as a their association with Corner Lords, Pound, Travelling Dog Vice member *** neighborhood Dog Pound in sur- activities of the dealing the occur- drug weapons, rounding specifically Dog Pound, and shooting incident within the rence of the February up leading in that area at the time Disciples 26, 1995.” wit- to show the was sufficient presentation This potential a bias rival members with were nesses L. Alford, See U.S. against the defendant. (“It fair of a at 219 the essence 628, 51 S. Ed. at Ct. cross-examiner, given the latitude be trial that reasonable what facts to state to the court he is unable though even develop”). might reasonable cross-examination evidence gang-affiliation that The defendant asserts perception beyond to show his bias had relevance According shooting. before the immediately danger background against rivalry was the defendant, gang exchange which he viewed his with Moret. The State admissible, concedes that this evidence was but answers that cross-examination allowing on affiliation would have theory introduced a self-defense its case in into chief. The State ruling asserts that court’s limine affected only during defense’s cross-examination case; Taylor, defendant could called have Myrick, and Blakemore as during witnesses the defense case chief. note recalling
We “is witness both inconvenient (T. Wolfson, and inefficient” Mauet & Trial W Evidence (2d 2001)) 12.2, § and, at 367 ed. in the of a context trial, criminal potentially fatal if defense State’s witnesses become unavailable. question
“Unless the fairly is vital and he is confident of a answer, favorable might cross-examiner unwilling be *17 run calling adversary’s the risk of witness at later stage as his own and will inquiry. Getting abandon the opponent’s concessions from the on witness hot the heels story direct while his is fresh is trying worth for. It is a much less option attractive to call an unfriendly wit- ness later when testimony his first is stale.” 1 Strong, J. (5th 1999). 23,§ McCormick on Evidence at 98 ed. Additionally, although cross-examination which ranges beyond subject of direct place examination to the defense theory the case before jury is generally (see Graham, improper M. Cleary & Graham’s Handbook (7th § Illinois 611.11, Evidence 1999)), 514 ed. may inquire into whatever explain, tends to qualify, discredit, modify, or destroy the direct examina tion testimony, even if the inquiry may incidentally constitute new matter which aids the defendant’s case. Enis, 264, v. People (1990); 139 Ill. 2d 295 People v. Wil liams, 478, (1977); 66 Ill. 2d 486 v. People Aughinbaugh, 320, 36 Ill. 2d (1967); Morris, 325-26 People v. Ill. 30 2d 406, (1964); 409 see 1 generally J. Strong, McCormick on (5th 1999). § 21 Evidence ed. Cross-examination on affiliation would have discredited the testimony from
22 this and Blakemore. The fact that cross-
Taylor, Myrick, the defen may incidentally have furthered examination it improper. not make theory dant’s self-defense does Cf. (1989) (“Evidence Lucas, 399, v. 2d People cannot be excluded purpose which is admissible one for another for the it would not be admissible reason purpose”). granting
Trial courts should hesitate before be, motion in limine “if will for all the result of the defendant’s an evisceration practical purposes, Prevo, 302 Ill. theory App. of the case.” (1999). do not the defendant’s Although we reverse flex reason, that more for this we observe conviction some approach scope ible of cross-examination 611(b) Fed. Evid. may preferable. be See R. times (“Cross-examination subject should be limited affecting examination and matters matter of the direct in the may, The court credibility of the witness. discretion, into additional mat permit inquiry exercise of added)). as on direct examination” (emphasis ters if are by raised remaining issues remand, decline to address unlikely to on and we recur them.
CONCLUSION discussed, reverse we have we For the reasons remand for a new trial. defendant’s conviction
Reversed and remanded. HARRISON, concurring: specially JUSTICE CHIEF *18 for an ad fatally flawed below were proceedings did not by my colleagues: they reason not raised ditional govern by enacted our court the new rules comport with seeking is in the State of cases which the conduct ing my dissenting in set forth For the reasons penalty. death (2001) 585, Ill. 2d 631-36 People Hickey, v. opinion in contained (Harrison, C.J., dissenting), procedures indispensable those rules are an achieving accurate are guilt determination innocence applicable all capital coming cases now us on direct before review. tried, Because Blue was convicted and sentenced without rules, the benefit of the new his conviction and sentence not could be allowed to stand if even the errors identified by my colleagues present. reason, were not For that given by addition the reasons I majority, therefore agree that Blue’s conviction and sentence should be set aside granted and that he should a new be trial. retrial,
On the State must proceed accordance with our sufficient, new rules. Whether those rules will be by themselves, place capital this state’s punishment system within the permitted by tolerances the state and federal constitution is a question we cannot yet answer. certain, What however, is that no proceeding conducted without benefit of can the rules be deemed reliable. IAs in my partial discussed concurrence and partial dis Bull, sent in v. People (1998), 2d 179 present penalty Illinois death eighth law violates fourteenth amendments to the United States Constitu (U.S. XIV) Const., tion VIII, amends. I, and article sec (Ill. 2, tion of the Illinois I, Constitution Const. art. 2)§ because it will inevitably lead to the execution of in persons. nocent It is therefore void and unenforceable. Accordingly, if the State does not rules, adhere the new and if Blue again, is convicted the State should not be permitted to seek the death penalty. KILBRIDE,
JUSTICE also specially concurring: I concur with the majority’s opinion and judgment. Nevertheless, in addition to the set by reasons forth majority, agree I with Chief Justice Harrison defendant’s convictions and sentence should also set be aside because the trial proceedings were not conducted in accordance with supreme the new govern- court rules ing I capital cases. As stated in my dissents in
24
(2001)
Hickey,
(Kilbride,
585,
J., dis
204
2d
636-40
Ill.
v.
People
Simpson,
536,
2d
204 Ill.
581-85
senting),
(2001)
(Kilbride, J., dissenting),
procedures
capital
adoption of the new rules were
prior
cases
to this court’s
sufficiently
protect
and did not
inherently
unreliable
rights. Consequently,
defendant’s
constitutional
of the old
rules,
help remedy
the flaws
promulgated
cases
applied retroactively
capital
to all
system, must be
v. Hud
People
currently
appeal.
on direct
See
pending
v.
son,
(2001);
also
195 Ill. 2d
126
see
Griffith
Kentucky,
314, 328,
649, 661,
2d
107
U.S.
93 L. Ed.
479
(1987).
reason, as
as those
708, 716
For this
well
S. Ct.
defendant’s
retrial
by
majority,
articulated
reasons
with the new rules.
proceed
compliance
must
THOMAS, dissenting:
JUSTICE
conviction
majority
reverses
trial
on the
that
ground
remands
for a new trial
in limine
ruling
error.
prejudicial
court’s
constituted
was,
most, harmless
any error
at
Because I believe that
I
error,
majority opinion.
from the
dissent
I believe
this case
majority,
In contrast
to the
Gonzalez,
v.
Ill.
332
104
2d
distinguishable
from
1988).
(7th
O’Leary,
and Clark
(1984),
Likewise, Clark, member, witnesses, members, claimed that the State’s rival identifying had lied in defendant as shooter in order *20 to an retaliate for earlier altercation with defendant’s gang. granted Clark, F.2d at 1001. The 852 trial court the State’s motion in limine to exclude all to reference gang Clark, affiliation. 852 F.2d at The 1001. Seventh Appeals Circuit Court of found that the trial court had noting error, committed reversible that the had State entirely place on relied the rival to witnesses the Clark, defendant at the scene of the crime. 852 at F.2d 1007. excluding testimony
Here, contrast, of even the Taylor, Myrick and Blakemore, the rival three supporting members, the evidence defendant’s conviction overwhelming. Hall, Terrance the attendant at the filling station, Amoco testified that while he was gas, containing defendant’s van with a car the victim gas got came into the station. Hall said that the victim approached spoke car, out of the van, to the van’s driver, then walked over toward the cashier’s booth. The defendant then walked toward the cashier’s booth and began arguing with the victim. As defendant and the arguing, victim were Hall to returned the cashier’s booth. arguing Hall heard men woman, a about but heard nothing gangs drugs. nothing about or The victim did arguing although he while was with defendant angrier argument became as the continued. Hall did not anything see hands, in the victim’s and did not see jacket any victim reach into his or make unusual move- ments with his hands. Hall said that defendant then shot pursued once, the victim and the victim he as turned to again. run and shot him The defendant continued to victim The ground. after the victim fell to the shoot the 14 gunshot revealed wounds. autopsy the victim any other that was not affiliated with witness out Pane, get Irma that she saw the victim gang, testified then car, stop money, get of a for a moment count defendant’s van pull line booth. She saw cashier’s get and out gas into the station observed the victim. Pane heard go speak over van , a saw defendant defendant call the victim mother — a never saw gun and shoot victim. Pane pull out never him reach in the victim’s hands and saw weapon weapon. for a recognized has three approaches
This court beyond an is harmless reason determine whether error (1) the error contributed able doubt: whether (2) conviction; whether other evidence defendant’s overwhelmingly supported the case (3) conviction; would whether excluded evidence Gonzalez, Ill. cumulative. have duplicative been Wilkerson, 338-39, citing 2d at *21 (1981). that case, each establishes approach In this beyond a reasonable in case was harmless any error this First, testimony of Pane and the Hall doubt. because conviction, unlikely it is defendant’s supported alone the the restricting in cross-examination any that error defendant’s to other three witnesses contributed Smith, 185 Ill. 2d 532, 541 conviction. See (1999) (even if and single witness, positive testimony of convict). Second, even credible, sufficient witness witnesses, the three testimony of those excluding the and overwhelming. Both Hall in the case was evidence never saw the victim they that Pane testified a weapon, to reach for appear nor he ever did weapon, that he shot victim testimony contrast defendant’s reaching gun. the victim was thought he because claim any negates and Hall also of Pane testimony threatening that the victim or that aggressive, drugs. defendant and the victim over arguing were Further, he self- although defendant claimed acted in defense, times, fact that he shot victim and ran, continued to even victim turned shoot as the belie tends to defendant’s claim.
Third, Clark, and in contrast to Gonzalez trial court this case did not bar all evidence of af- filiation, but in testify fact allowed defendant that he and the victim were rival gang members that drug victim’s one operation was located block from drug operation. Defendant also that testified Myrick and Blakemore were members of the drugs sold with the victim. just Defendant claimed that prior shooting, the victim had accused defendant of shooting at block drugs, where the victim sold which caused apprehensive to be at time of the shooting. Consequently, the excluded evidence of gang affiliation would have been duplicative of presented evidence at defendant’s trial. any restricting
Because error cross- examination of the State’s witnesses af- concerning gang was, most, error, filiation harmless I dissent from majority’s finding that defendant’s conviction should be reversed and remanded. joins
JUSTICE CABMAN in this dissent. hardstein wrote notes more, Taylor, and tried to Moret Myrick pick up before dead; that he fell realizing money some of Moret’s gas out of his hands and scattered around the station. picked The defendant testified that some him friends in his on up morning van proceeded passengers, to the Amoco station. Two Tall Mein, Ralph buy cigarettes, Chow exited the van to driver, Poo, while the asked the attendant worth $30 Poo, gas. approached Moret the van and asked “Where \i.e., tip a— at? He p— Murray up Blue shot our drug-selling territory].” According “actually really drug actually just Moret was dealer [a] say somebody can somebody you that’s rival member right down The defendant drugs who sold the street.” drug stated that he and Moret rival dealers a block were on End Moret and his friends called apart West Avenue. Pound, Lords Dog subsidiary themselves Vice